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JUDICIAL REVIEW AND STATUTORY APPEAL - Practice and procedure - Discovery and disclosure - Production and inspection of documents

Monday, March 13, 2017 @ 8:58 AM  


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Submissions on necessity of documentary disclosure in support of applicant's affidavit associated with judicial review application. The applicant sought judicial review of a decision by the Public Service Labour Relations and Employment Board and submitted a request for documentary disclosure. The Board objected to disclosure of certain documents pursuant to Rule 318 on the basis the documents were protected by legal professional privilege. Another judge of the Federal Court of Appeal issued a direction for submissions on the necessity of disclosure. The Board maintained that the documents were privileged as having originated from its legal services branch and therefore protected from disclosure. The applicant submitted the Board provided no evidence supporting its assertion of privilege.

HELD: The absolute nature of legal professional privilege did not relieve the Board's obligation to adduce evidence to prove its existence. Although a Rule 318 objection was capable of resolution through submissions, it was necessary to file evidence in support of privilege where facts remained in dispute. The origin of the documents was insufficient to establish legal professional privilege, as the Board was required to establish the dominant purpose of the creation of the documents. The appropriate solution was to order the Board to bring a motion for an order upholding its Rule 318 objection, providing the parties a full opportunity to file evidence, and if necessary, test it.

Bernard v. Public Service Alliance of Canada, [2017] F.C.J. No. 195, Federal Court of Appeal, D.W. Stratas J.A., February 16, 2017. Digest No. 3642-002